A commentary on rabbinic texts and toxicality

September 08, 2005

When the High Priest dies... (Rehnquist Memorial Amnesty)

The Bible teaches us that, after the High Priest dies, there shall be an amnesty for those killers exiled to the six cities of refuge.*

In memory of Supreme Court Chief Justice William H. Rehnquist, would it not be fitting to institute an amnesty or moratorium for those on death row?

Do you think a Chief Justice Rehnquist Memorial Amnesty would appeal not only to opponents of the death penalty, but also to those trying to bring the Ten Commandments and other Judeo-Christian beliefs into our judicial system?

Maybe somebody should design a Chief Justice Rehnquist Memorial Amnesty logo to be placed on supporting blogs and websites? I will list all supporting links here...

* The 6 cities of refuge were to serve, in effect, as ancient prisons for those who had committed manslaughter. See Numbers 35:9-34, High Priest amnesty at v.28. Also Exodus 21:12-14, Deut. 19:1-13, Joshua 20)

Comments

My mother always told me that when a person dies, one should not say anything bad about him. My mother was wrong. History requires truth, not puffery or silence, especially about powerful governmental figures. And obituaries are a first draft of history. So here’s the truth about Chief Justice Rehnquist you won’t hear on Fox News or from politicians. Chief Justice William Rehnquist set back liberty, equality, and human rights perhaps more than any American judge of this generation. His rise to power speaks volumes about the current state of American values ... MORE

Since the US Supreme Court reinstated the death penalty in 1976, there have been 600 executions across the country--and 85 exonerations of innocent people already on death row. The "shameful record" in Illinois (12 executed, 13 set free) that Gov. George Ryan cited in declaring a capital punishment moratorium on January 31 is anything but unique to his state. What is unique about Illinois, according to the Religious Action Center of Reform Judaism (RAC), is "the diligence and hard work of a well-funded public defender's office" and the determined efforts of students and professors at Northwestern University who have done the research critical to saving nine of the state's 13 exonerated death row prisoners.

"How many more people would be cleared if other states had these mechanisms?" asked the RAC on the day of the Ryan's announcement. "How many currently go to the death chamber for crimes they did not commit?" Such questions have now prompted Pennsylvania, Washington, New Jersey, Maryland and other states to consider moratorium legislation.

What light can the Jewish tradition shed on this debate? The fact is that the Torah, like other ancient law codes, assigns the death penalty to many proscribed behaviors besides murder. Adultery, rape of a betrothed woman, giving insult or injury to one's parents, witchcraft, homosexuality, public profanation of the Sabbath--all are capital crimes.

By the second century CE, however, the Rabbis, whose debates and rulings fill the early texts of Jewish law and commentary, had virtually nullified the death penalty. The Mishnah (the codification of Jewish law that forms the core text of the Talmud) states that "a Sanhedrin [Jewish governing council] that puts a man to death once in seven years is called destructive. Rabbi Eliezer ben Azariah says: even once in 70 years. Rabbi Akiba and Rabbi Tarfon say: Had we been in the Sanhedrin none would ever have been put to death" (Makkot 1: 10).

Even in murder cases, the Torah's requirement of two eyewitnesses ("the testimony of a single witness against a person shall not suffice for a sentence of death," declares Numbers 35: 30) was extended by the Rabbis to make capital punishment highly unlikely. The murderer's own confession could not be accepted as evidence, and the two eyewitnesses were required to have warned the criminal beforehand that he would be executed. The crime, in other words, had to be premeditated in the extreme.

Justice tempered by mercy thus became the Jewish ideal. In a stirring story in the Babylonian Talmud (Berachot 7a), Rabbi Ishmael ben Elisha reports entering the inner sanctuary of the Temple and seeing God "sitting on a high and exalted throne. He said to me, 'Ishmael, My son, bless Me.' " The rabbi responded to this extraordinary request by asking that "Your compassion should overpower Your anger . . . and You should conduct Yourself toward Your children with compassion and beyond the letter of the law."

The contrast between Rabbi Ishmael's blessing/prayer and the reality of capital punishment in modern America is stark and disturbing. Consider these facts from the Moratorium Now! campaign and other sources:

Nearly 400 homicide convictions have been overturned since 1963 because prosecutors concealed evidence or knowingly presented false evidence.
More than 90% of capital cases have been defended by court-appointed attorneys - large numbers of whom were later disbarred or resigned to avoid being disbarred (25% in Kentucky, 13% in Louisiana, 33% in Illinois). According to Moratorium Now!, "not one state meets the American Bar Association's standard for the appointment of counsel for indigents."
Racial prejudice is a distinct factor in death sentencing, according to a study by the U.S. General Accounting Office.
Thirty-four mentally retarded people have been executed since 1984.
A Duke University study has pegged the cost of executing a prisoner at over $2 million - more expensive than prison maintenance for life. Nor does the death penalty deter crime: Since its reinstatement, 80% of the nation's executions have been carried out in the South, which nevertheless has the highest murder rate of any region.
The ancient Jewish version of a moratorium on capital punishment took place during the era of Roman rule over Israel, when the power to impose death had already been taken out of the hands of Jewish courts. As in many other rulings in the Talmud, mercy was emphasized in direct contrast to the merciless Roman system under which Jews lived and died for centuries.

By contrast, it was during the economically stressful and mean-spirited 1980s that the death penalty made its comeback in the US, as politicians learned to view criminal justice not as weighty moral matter but as an easy way to cultivate their popularity. Today, amidst high employment and growing surpluses, a spirit of mercy seems to be trickling back into the public dialogue. Even those who ultimately support capital punishment want to see it applied fairly, which is the foremost goal of the Moratorium Now! campaign. Hundreds of municipalities, organizations and faith communities, and thousands of individual citizens, have already signed on to the campaign.

You can learn more about it by visiting the website of the sponsoring organization, Equal Justice USA, at www.quixote.org/ej.

At the time the Torah was written revenge among non-Hebrews was often brutal. An injured man might well retaliate by waging an all-out war against the tribe of his injurer. Such brutality was prevented among the Hebrews by the Torah; it limited punishment to no more than equal retribution: "Life for life, eye for eye, tooth for tooth" (Deut. 19:21).
The Rabbis of the Talmud took this ethical advance to a still more refined level stating that not only was indiscriminate vengeance illegal, but also "eye for an eye" was never intended to mean equal retribution. Rather it meant monetary compensation for damages. When one person injures another, the Talmud tells us this person is "liable to pay the costs of the others’ healing" (Mishna Bava Kamma, 8:1).

The Elimination Of Capital Punishment

A GENIUS OF THE rabbis was their ability to interpret and elaborate on the traditions and writings that came before them and thereby heighten Judaism’s ethical sensibilities.
Knowing well of such biblical writings as "whoever sheds the blood of man, by man shall his blood be shed" (Gen. 9:6), they made such recourse nearly impossible through biblical interpretation and Talmudic law. In trials dealing with capital offenses the Rabbis laid down laws in the Talmud that were so detailed and restricting that in effect they abolished capital punishment, Some of these legal provisions are:

Testimony had to be presented by two eye witnesses of the actual crime. Both witnesses had to have forewarned the accused that the penalty for the crime that he or she was about to commit was death and the defendant had to verbally acknowledge that he or she understood. (MT) Sanhedrin 7:2

To prevent untrue accusations witnesses who testified falsely were liable to the same punishment of the accused. Makkor 1:4

"One who is hardhearted" was not to be permitted on the jury. Sanhedrin 36B

Circumstantial evidence was not allowed. Sanhedrin 37B

In capital cases the judges could intervene to present arguments for the innocence but not the guilt of the accused. Sanhedrin

"A Jewish court of sages which executed one person in seven years was called a murderous court. ‘One in seventy years’ says Rabbi Elazar ben Azariah."
Mishna Makkot 1:10

Reverence For Life

Through its concern for humanity and reverence for life, Judaism has truly been a "light unto the nations." These values are basic to Judaism, yet we live in an age when they are increasingly hard to sustain and even more difficult to promote.
The death penalty brutalizes our already violent world by giving legal sanction to killing, thus further eroding the ethical foundations necessary for a moral society.

As I live, says the Lord God, I have no desire for the death of the wicked. I would rather that a wicked man should mend his ways and live. (Ezekiel 33:11)

The talmudic story of Meir and Beruriah illustrates this attitude.

It is told that the same robbers in the neighborhood of Rabbi Meir were causing him trouble. He prayed that they would die. Beruriah, his wife, said to him, "how do you make such a prayer?" Do not pray that the lives of sinners cease, but rather that their suns should be no more. For if their sins cease there will be no more wicked men. Pray for them and that they should repent." He did so and they did repent. Mishna Berakhot 10a

The Union of American Hebrew Congregations has translated this concept into a modern imperative:

We believe that there is no crime for which the taking of human life by society is justified, and that it is the obligation of society to evolve other methods in dealing with crime.

Israel Today

Present Israeli law has eliminated capital punishment. There is an exception to this law in cases of treason and genocide which has been applied only in the extreme situation of the Eichmann case.
During the first murder trial after the establishment of the State of Israel, the two chief Rabbis urged the immediate abolition of the death penalty warning the court that it was incompatible with Jewish law.

Statements Of Capital Punishment By Jewish Organizations

A friend of the court brief, filed by the Synagogue Council of America, composed of the rabbinical and congregational bodies of Modern Orthodox, Reform and Conservative Judaism – "All of the amici are opposed as a matter of principle to the imposition of the death penalty and support its abolition. Their position is based on their judgment as to the demands of contemporary American democratic standards, but also has its roots in ancient Jewish traditions."

The American Jewish Committee – "…the death penalty is cruel, unjust and incompatible with the dignity and self respect of man."

Central Conference of American Rabbis – "We urge the abolition of the death penalty where it is still in effect. We are convinced that it does not act as an effective deterrent to crime."

Union of American Hebrew Congregations – "We appeal to our congregants and to our co-religionists and to all who cherish God’s mercy and love to join in efforts to eliminate this practice (of capital punishment) which lies as a stain upon civilization and our religious conscience."

Rabbinical Assembly – "We regard all forms of capital punishment as barbaric and obsolete. The abolition of capital punishment will be an important step forward in the direction of a more humane justice."

The Jewish Peace Fellowship – "We believe that Jewish ideals and experience provide inspiration for a nonviolent commitment to life…The death penalty stands in defiance of our efforts to work for a better society through nonviolent means.

What You Can Do

Distribute this leaflet, hold discussions, study groups, lectures in local congregations and day schools.

Work with others in your community or state to oppose efforts to reinstate the death penalty.

Explore alternatives to violent solutions to crime. Find out what others are doing.

American Civil Liberties Union – Has fought long and hard against capital punishment, Contact the A.C.L.U. office in your state.

THE JEWISH PEACE FELLOWSHIP unites those who believe that Jewish ideals and experience provide inspiration for a nonviolent philosophy of life. Stimulated by elements in traditional and contemporary Judaism which stress the sanctity of human life, the JPF promotes respect for humanity and confidence in its essential decency. These attitudes it endeavors to incorporate in the personal relations of its members and friends. In striving to eliminate the causes of war, the JPF is specially concerned with the advancement of freedom and justice for all people.

In drawing upon the Biblical notion of amnesty, we would not need to restrict ourselves to the exact Biblical circumstances. Greg and Larry are correct that the Biblical amnesty does not apply to deliberate murderers. On the other hand, death rows are full, no doubt, of many killers who were not convicted as murderers under Biblical or rabbinic rules (e.g., eyewitnesses). So every analogy does require some judgment and interpretation.
Thanks for commenting.